It appears from the record of the case that concurrent decisions were rendered by both the Examiner of Interferences and the Board of Examiners-in-Chief in favor of Putnam upon all the combinations of mechauisins embraced by the three issues of the interference. The basis of their decisions was that Stevens, although the first to conceive of the invention, had forfeited by his delay in his reduction to practice his inchoate right to a patent in favor of his more diligent opponent. My predecessor, while affirming the decisions of the lower tribunals as to the second and third issues involved, reversed their findings as to the first issue of the interference, since, in his judgment, Stevens was the first to conceive the invention, and proceeded with reasonable diligence to reduce the same to practice, and was the party justly entitled to a patent therefor. The first of the points assigned as of error is the finding that Stevens was the first to conceive the invention.

It conclusively appears from the testimony, and has been uniformly so held, that this invention was conceived and reduced to practice by Putnam prior to any reduction on the part of Stevens. It is apparent, therefore, that the case of Stevens is dependent solely upon the fact of priority in date of conception, and if there has been an error in this finding it is one necessarily fatal to his case.

I concur in the statement of counsel for Stevens that the conception of an invention is that "state or stage of the invention when it is complete in the inventor's mind, but has not yet been reduced to practice or embodied in material form," as I also do with counsel for Putnam that a mere conception that a desired result can be accomplished is not such a conception as can give date to an invention.

The earliest date at which an invention can be said to exist is that time when there was in the mind of the inventor a well-defined idea of something which might rightfully constitute the subject of a patent. The law is well settled that a mere unembodied principle or discovery is not a subject of a patent, and it must logically follow that the mere mental apprehension of the same is not the conception of an invention. When, however, the principle or discovery is rendered of practical service by its embodiment in material form, there exists something for which a patent can be allowed, and the union in the mind of the inventor of this principle or discovery with the means of its embodiment is conception of the invention.

Commissioner Leggett, in the case of Cameron & Everett v. J. R. Brick (C. D., 1871, p. 89), in discussing this subject, used the following language:

The point of time at which invention in such sense as to merit the protection of law dates is neither when the first thought of it is conceived nor when the practical working machine is completed, but it is when the thought or conception is practically complete; when it has assumed such shape in the mind that it can be described and illustrated; when the inventor is ready to instruct the mechanic in relation to putting it in working form; when the "embryo" has taken some definite form in the mind and seeks deliverance, and when this is evidenced by such description or illustration as to

demonstrate its completeness. It may still need much patience and mechanical skill and perhaps a long series of experiments, to give the conception birthin a useful working form. The true date of invention is at the point where the work of the inventor ceases and the work of the mechanic begins. Up to that point he was inventing but had not invented, and he must have invented before the law will come to his protection. The issues involved in this interference are certain combinations of mechanisms for making barbed fence-wire. A combination, as distinguished from a mere aggregation, may be defined as a union of elemental parts co-operating dependently to produce a desired result, and a con ception of such combination must include not only the idea of associating the parts, but also that of so uniting them that there will be a dependent co-operation.

The fact of the conception of an invention is one which public policy demands shall have been so evidenced as to be capable of other proof than the mere allegation of the inventor that such invention was at a certain time in his mind before it can avail him anything, and as long, therefore, as he keeps his invention unembodied and undisclosed it cannot serve to antedate and thus defeat the invention of a contestant. Berring v. Haworth, 14 O. G., 117; Farmer v. Brush, 17 O. G., 150; Kinsman v. Dickson, MS. Dec., Vol. 21, p. 323. In the last cited case I stated that

The reason of this rule is obvious, since the mere conception, while it remains in the mind of the inventor, must perish with him and can add nothing to the world's store of knowledge, and it is, moreover, a matter utterly incapable of rebuttal, and were a party permitted by such a mere allegation of conception to establish priority of invention a premium to false swearing would be offered against which honest inventors could have but little security.

Applying the above considerations to the present case, it remains to determine whether the testimony in behalf of Stevens is sufficient to prove that he had conceived the combinations at issue in this interference prior to the time of their conception by Putnam.

The first issue of the interference is as follows:

The combination, with mechanism constructed and arranged to automatically feed forward the fence-wires at stated intervals, and mechanism constructed and arranged to coil the barb about the main wires, and mechanism constructed and arranged to automatically feed forward the barb-wire across the main wires at stated intervals, of mechanism for cutting off the barb-wire, claimed by applicant in his first claim, and shown by each of the patentees above named.

I must concur with the Examiner of Interferences and with the Board of Examiners-in-Chief that the testimony adduced on behalf of Stevens to show a conception of the invention in 1874 is utterly insufficient for that purpose. It appears that in 1874 Stevens produced a machine for the purpose of manufacturing what was known as the "Rose" fence, which consisted of a wooden rod provided with projecting barbs. In this machine the rod was advanced at intervals, and the barb-wire forced through the same and cut off and the wire fed forward. This machine obviously did not cover the combination of the first issue, as the necessity did not exist for coiling the barb. In the same year Stevens also

made two models by which barbs could be coiled around a wire. Clearly these models did not cover the invention in controversy. It appears conclusively that in the early part of the year 1875 he explained his coiling models, and said that in the machine to which they would be applied the feeding of the wire for the barbs and the general manner of manufacturing would be similar to the machine employed in making the Rose fence.

This is the strongest testimony in favor of Stevens, and is that upon which was based the finding of the lower tribunals that he was prior to Putnam in his date of the conception of the invention. I am unable to find in the testimony, however, any satisfactory evidence that Stevens had at that time invented the combinations of mechanisms involved in this interference. Undoubtedly the thought of associating these together was in his mind, but there is nothing to show that he had any well-defined idea as to the manner or means by which they were to be united for dependent co-operation. It can scarcely be said that with the realization of the necessity and possibility of the improvement the work of the inventor was finished. It had, in fact, just begun, for up to that time there was no conception as to how the principle was to be embodied or how the combination of the associated mechanism was to be effected. All of this required the genius of the inventor in the reorganization of existing machines, and not merely the skill of the mechanic.

I must, therefore, hold that the first ground in the motion for rehearng is well taken, and that there was an error in the finding that Stevens was the first to conceive the invention at issue. I have reached this conclusion realizing fully the fact that to warrant the grant of a motion of this character the error must appear to have been such a one as would entitle the defeated party to a new trial in the courts, and I should feel great hesitation in disturbing the judgment of my predecessor were I not satisfied from the proofs that substantial justice requires me so to do.

This motion on behalf of Putnam is accordingly granted. The decision of April 10, 1880, so far as it relates to the first issue is set aside, and priority of invention as to the matter embraced in such issue is awarded to Henry W. Putnam, the patentee.

FULGHAM v. WESTCOTT.

Decided August 27, 1880.

18 O. G., 571.

1. The testimony of a witness cannot be impeached by showing his general character founded upon particular facts rather than upon general repute, and failing to show his character for truth and veracity.

2. Upon final hearing of the case by the Commissioner it was found that the testimony, was so evenly balanced that judgment would have to be given upon the record should no more convincing testimony be adduced, and further time was allowed the parties to produce additional evidence. The case coming up again on appeal, it was found that there was nothing in such additional testimony tending to turc the evenly-balanced scales of the former proofs, and the conditional decision on the record was made permanent.

APPEAL from the Examiners-in-Chief.

SEEDING-MACHINE.

APPLICATION of Jesse P. Fulgham filed June 4, 1877. Patent granted to John M. Westcott, April 25, 1876, No. 176,719.

Mr. J. E. Hatch and Messrs. Dodge & Son for Fulgham.

Messrs. Wood & Boyd and Mr. Jas. L. Norris for Westcott.

MARBLE, Commissioner:

My predecessor in office, on October 20, 1879, rendered the following decision in this case:

The issues in interference are defined as follows:

"1. The combination of the scalloped feed-wheel and sleeve, the sleeve being of smaller diameter than the wheel, to provide for the free access of grain to both the periphery and ends of the scallops, and the sliding sleeve provided with cut-off wings at the top and bottom, as expressed in the first and second claims of Westcott.

"2. The combination of the sliding shaft, collars, indicator, swiveling jaw, and lever, connected and operating as shown and set forth, as expressed in the third and fourth claims of Fulgham and the fourth, fifth, and sixth claims of Westcott."

It is not necessary that an applicant, in order to overcome a patent, should establish priority of invention beyond the possibility of a reasonable doubt. Only such proof is required as would, in a possessory action, real or personal, in the courts, be sufficient to support a recovery against a defendant in possession. The burden of proof is on the applicant, and the preponderance must be in his favor or the patentee will be entitled to judgment. But I can find in the proofs on file in this case relating to the first issue no real preponderance in favor of either party; and the decision, if no other proofs should be presented, must be in favor of the patentee, who is in possession.

While this is a technical decision, so far as the first issue is concerned, and may not be a just decision, it will necessarily stand as final unless further proof shall turn the scales in favor of the applicant. I have concluded that justice requires me to remand the first issue of the interference to the Examiner of Interferences, who will fix the time within which each party may take further testimony. The testimony will be closed within sixty days from the date of this decision.

Priority in the second issue is awarded to the patentee.

In accordance with the order in the above decision additional testimony has been presented by both the applicant and the patentee.

A consideration of the original testimony is necessary to a correct understanding of the status of the parties and to determine the weight of the additional testimony, which must turn the evenly-balanced scale of the former proofs. The fact that the testimony is of a most contradictory character, and the further fact that the parties contestant and the witnesses in their behalf are, as I think, without any substantial impeachment, have rendered this case one of exceptional difficulty.

During the period of time covered by the proofs-viz, from the year 1873 to the year 1877-the Hoosier Drill Company was engaged in the manufacture of agricultural implements at the town of Milton, Indiana. Of this company, Westcott, the patentee, was secretary and treasurer, and Fulgham, the applicant, was employed as pattern-maker. Of the witnesses, Isaac Kinsey was president of the company, Aaron Morris was superintendent, M. E. Reeves and Wilson Jones were directors, Jacob A. Halteman was foreman of the foundry connected with the company's works, and William R. Mount was foreman of the machine-shop. It appears that the grain-drill manufactured by this company during the year 1873 did not give entire satisfaction by reason of some imperfections in the mechanism for regulating the quantity of seed sown, and attention was called by a traveling salesman of the company to the fact that a formidable rival existed in a drill manufactured at Belleville, Illinois, under a patent granted to one Esler. In the fall of 1873, Kinsey and Westcott, being at St. Louis, went to Belleville, saw the Esler drill, and subsequently secured a license for the Hoosier Drill Company to manufacture the same. This device consisted of a hopper, an inclosing-case, a sleeve, and scalloped feed wheel, which latter carried the seed through the inclosing-case and delivered it into the tube of the drill. The feed-wheel and sleeve were mounted end to end on a rotating shaft in such a manner that the scalloped wheel only revolved. A longitudinally-sliding movement was given to this rotating shaft with its wheel and sleeve, and in this way a larger or smaller surface of the scalloped wheel was exposed to the grain and a corresponding greater or less quantity was delivered to the tube. The sliding sleeve was of the same diameter as the feedwheel, and filled the delivery space when, by the withdrawal of a portion of the feed-wheel, the quantity of seed was to be diminished. An objection was found, however, to exist to the use of this drill, viz, that the seed would "bridge over" when but a small surface of the scalloped wheel was exposed, and would not pass into the drill-tube below; and to obviate this the use of an agitator was found necessary. This objection appears to have prevented the immediate adoption by the company of the Esler drill. Experiments were subsequently made with this drill, as also with a drill patented by one Morrison, and with improvements consisting of features of both the Esler and Morrison drills. None of these devices appear, however, to have been thoroughly successful, and in the spring of 1875 the invention here at issue was adopted.

This invention is but a slight, although a valuable, change from the Esler device, and consists essentially in reducing the diameter of the sleeve so that the grain will be admitted to both the top and end of the scalloped wheel, so that the "bridging over" of the grain is avoided; and in providing cut-off wings to compensate for the reduction of the sleeve and prevent the consequent escape of the grain.

Jesse P. Fulgham claims to have conceived the invention in the fall of the year 1873. It appears that he had at such time an application